Cosgrove Export Brewery Co. v. The King

Cosgrove Export Brewery Co. v. The King

The order striking out the paragraph alleging a set off determined a substantial right of the appellant and therefore constituted a 'final judgment' within the meaning of s.2 of the Supreme Court Act; accordingly the Supreme Court has jurisdiction to entertain the appeal and to determine the motions concerning security.

Citation
[1928] SCR 405
Parties
Appellant/defendant: Cosgrove Export Brewery Co.; Respondent/plaintiff: His Majesty The King
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
24 April 1928
Procedural Posture
Appeal From Exchequer Court / Motion Concerning Approval/refusal of Security and Jurisdiction to Hear Appeal
Outcome
Respondent's motion to have the security refused dismissed with costs; appellant's motion for approval of security granted; Supreme Court affirmed jurisdiction to entertain the appeal (order treated as final judgment for purposes of appeal).
Legal Topics
Final Judgment, Set Off Against the Crown, Jurisdiction of the Supreme Court of Canada, Security for Costs, Practice and Procedure
Source Language
English
Appeal Civil Procedure Tax Law Final Judgment Set Off Against the Crown Jurisdiction of the Supreme Court of Canada Security for Costs Practice and Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Cosgrove Export Brewery Co.

Appellant/defendant

His Majesty The King

Respondent/plaintiff

Procedural Posture

Appeal From Exchequer Court / Motion Concerning Approval/refusal of Security and Jurisdiction to Hear Appeal

Legal Issues

  1. 1 Whether a judgment striking out a paragraph alleging a set off is a final judgment appealable to the Supreme Court of Canada
  2. 2 Whether a set off or counterclaim can be urged against the Crown without a fiat
  3. 3 Whether the decision appealed from is an exercise of judicial discretion or a question of practice and procedure affecting substantial rights

Ratio Decidendi

The order striking out the paragraph alleging a set off determined a substantial right of the appellant and therefore constituted a 'final judgment' within the meaning of s.2 of the Supreme Court Act; accordingly the Supreme Court has jurisdiction to entertain the appeal and to determine the motions concerning security.

Court Disposition

Respondent's motion to have the security refused dismissed with costs; appellant's motion for approval of security granted; Supreme Court affirmed jurisdiction to entertain the appeal (order treated as final judgment for purposes of appeal).

Orders

  • Respondent's motion to have the security refused dismissed with costs.
  • Appellant's motion for an order approving the security granted with costs to follow the event.